George Omondi v Cabinet Secretary, Ministry of Water, Sanitation & Irrigation & 2 others; Boaz Okoth Akello & 2 others (Interested Parties) [2021] KEELRC 1696 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that a Cabinet Secretary cannot appoint a water agency's CEO — that power belongs solely to the agency's Board.
What this practically means
#Executive summary
#Key legal issues
#Whether the Cabinet Secretary had the statutory power to appoint (or direct the appointment of) the Chief Executive Officer of the Agency under the Water Act, 2016
The Court held that section 66 of the Water Act, 2016 gives the Cabinet Secretary power to appoint the chairperson and four members but not the Chief Executive Officer.
The Court reasoned that where a statute intends to confer an appointment power it says so expressly. Section 66 expressly empowers the Cabinet Secretary to appoint the chairperson and four other members, but is silent on the Chief Executive Officer. That silence means no such power was conferred, and the Cabinet Secretary's involvement was therefore ultra vires.
Whether section 5(3) of the State Corporations Act empowers the Cabinet Secretary to appoint a Chief Executive Officer
The Court held that section 5(3) restricts the Cabinet Secretary's role to approving terms and conditions of service, not making the appointment.
Section 5(3) allows a state corporation to engage staff, including the chief executive, on terms and conditions the Minister may approve in consultation with the Committee. The Court read this as confining the Cabinet Secretary to setting terms and conditions after appointment, and noted that with the establishment of the Salaries and Remuneration Commission that role may have become legally redundant.
Whether the Mwongozo Code places the appointment of a Chief Executive Officer with the Board
The Court agreed with the Petitioner that the Mwongozo Code reserves the appointment of the Chief Executive Officer to the Board through a competitive process.
Annexure 1 Part D Paragraph 8 of the Mwongozo Code states the Board shall appoint the CEO through a competitive process, and Governance Practice 1(k) reposes that role in the Board. The Respondents made no meaningful response on this point, so the Court accepted that the Cabinet Secretary had no role under the Code.
Whether reliance on pre-2010 Circulars and diversity considerations could sustain the Cabinet Secretary's decision
The Court held the 2008 Circulars had been overtaken by the Constitution of 2010, the Water Act and the Mwongozo Code, and that merit and fair competition under Article 232 could not be displaced by generalised appeals to diversity.
The Circulars predated the current legal framework. Article 232 now makes fair competition and merit mandatory bases for appointments. While diversity is recognised, the Court held that a recruiting agency relying on diversity as the primary consideration must justify it with facts on the ground, which the Respondents did not do.
Whether the Board's forwarding of three names to the Cabinet Secretary was lawful
The Court held that by sending three names to the Cabinet Secretary, the Board was abdicating its statutory responsibility, distinguishing the authority relied on by the Respondents.
The Respondents relied on R v National Water Conservation & Pipeline Corporation & 11 Ors (2015) eKLR, but the Court noted that decision itself held that the buck stops with Boards in the management of state corporations and that Boards should have the leeway in appointing the Chief Executive Officer. Reliance on it was therefore misplaced.
Legal principles established
#- The Cabinet Secretary has no power under the Water Act, 2016, the State Corporations Act or the Mwongozo Code to appoint the Chief Executive Officer of a water works development agency; that power belongs to the Board.
- Diversity must not triumph over fair competition and merit as a matter of course; an appointment based on diversity as the primary consideration must be justified by facts on the ground.
- Pre-2010 presidential circulars inconsistent with the current constitutional and statutory framework are overtaken by time and cannot confer appointment powers.
Court orders
#- 1.A declaration that the involvement of the Cabinet Secretary and her decision recommending or directing the Board of the Lake Victoria South Water Works Development Agency to appoint Eng. Boaz Okoth Akello as Chief Executive Officer is ultra vires the Water Act, the State Corporations Act and the Mwongozo Code
- 2.A declaration that the power to appoint the Chief Executive Officer of the Lake Victoria South Water Works Development Agency is the mandate of the Board of the Agency
- 3.A declaration that the appointment of Eng. Boaz Okoth Akello as Chief Executive Officer of the Agency is contrary to the law and is invalidated
- 4.A direction that this judgment applies in Kisumu Petition No. 1 of 2021 and Kisumu Petition No. 2 of 2021 by reason of issue estoppel
- 5.Each party to bear their own costs
- Jurisdiction invoked
- Original constitutional petition jurisdiction under the Constitution of Kenya, 2010 (enforcement of Bills of Rights and public-law challenges to administrative action)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Omondi v Cabinet Secretary, Ministry of Water, Sanitation & Irrigation & 2 others; Boaz Okoth Akello & 2 others (Interested Parties) [2021] KEELRC 1696 (KLR)", Case Analysis (2021). Kisumu Petition No. 3 of 2021 (as part of the series including Kisumu Petition No. 1 of 2021 and Kisumu Petition No. 2 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1696/eng@2021-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.